Saturday, December 15, 2018

I've basically been arguing here for a decade now that there can be two coherent theories on deaccessioning.

You can think it's always wrong -- that museums hold their works in the public trust, for the benefit of present and future generations, and they should never be sold.

Or you can think works can, on occasion, be sold, if there is a sufficient reason. That reason can be to acquire other work. Or it can be something else (e.g., to keep from going out of business). You have to look closely at each individual case and decide. (This is my view.)

It's the middle view -- the view of the Deaccession Police, the view of the AAMD, the conventional wisdom in the field -- that is, frankly, ridiculous. It holds that deaccessioning is deeply unethical and a violation of the public trust if the proceeds of sale are used for Purpose X (anything other than buying art) … but completely fine if the proceeds are used for Purpose Y (buying art). I've never understood how that could be at all persuasive to anyone.

Former museum director Steven Miller has a piece in The New Criterion coming at it largely from the first perspective, and calling out "the obvious hypocrisy of voicing concern for the survival of collections, only to sell them into oblivion":

"Though it is largely accepted within the profession, deaccessioning is still a controversial issue. The debate surrounding it surfaces with alarming frequency. For the most part, however, complaints are rarely directed at the practice itself, but at what happens if any profits realized from the sale of the museum collections are 'misused.' Furor tends to erupt only when income will cover operating expenses or capital and debt payments, rather than pay for future acquisitions. Oddly, controversy about commercial deaccessioning sidesteps the fact that, unless the purchase is made by another museum, objects will probably be lost to the public forever. How does that practice align with the preservation imperative museums repeatedly embrace …? Put simply: it does not."

He adds that once a work is sold, "we might as well have tossed them on a bonfire. This is a total abrogation of museological duty."

What's his answer? First, "recognize this practice for what it is and acknowledge that it contradicts a museum's commitment to preserving and caring for its collections." And then he ends up signing on to the Ellis Rule:

"Correcting the unfortunate results of unbridled commercial deaccessioning is simple. An item can be deaccessioned and kept by the museum for educational purposes. Or it can be sold or given to another museum. Everyone wins in this situation …. One museum's loss can always be another's gain."

Saturday, December 08, 2018

Story here. Background here. Kapoor declares victory. On the other side, the N.R.A. says the suit was "baseless" but that "it agreed to remove the image 'to avoid the cost and distraction of litigation.' It also said that the settlement does not require the group to pay Mr. Kapoor any money."

Good overview of recent developments from Bennington's K.E. Gover. An excerpt:

"Unlike traditional forms of visual art, aerosol art on building walls cannot easily be bought or sold, and they are usually understood to be ephemeral by their very nature. In one sense, this makes exterior aerosol art an uncomfortable fit for the paradigmatic VARA cases presumably intended by Congress when it passed the statute nearly thirty years ago. On the other hand, however, it highlights the interest that the 5 Pointz artists had in the preservation of their works: they could not sell them, but their ongoing presence could lead to future commissions and professional opportunities. In that sense, moral rights, despite their designation as non-economic rights, can have very real material consequences for artists. Reputation is a form of wealth."

SUNY Fredonia sold a painting by the Georgian painter Niko Pirosmani for $2.3 million at Sotheby's London this week.

Question: was this sale "ethical"? How should the Deaccession Police react to it?

The answer is it depends. Was the painting held in something the university called a "museum"? If so, awful, unbearable, a massive crisis, Stalin-esque.

Or was it held other than as part of a university museum -- in which case, all is fine, yawn, nothing to see here.

In this case, according to Inside Higher Ed, the painting was in something called "the Stefan Zweig Collection," which "is not part of a university museum and contains more than just artwork." So nothing to worry about, totally ethical.

You tell me how any of that makes sense as a way to evaluate these sorts of sales.

Andy Hall won his fraud trial against a former college professor and her son who sold him a series of paintings they claimed were by Leon Golub. A jury awarded him $465,000 (the amount he had apparently paid for the works). Graham Bowley has the story here. Background here.

"The question becomes: will Banksy attempt to put a stop to English’s plan? It seems unlikely. Actually enabling English to go through with it seems like just the type of stunt and resulting publicity that Banksy is accustomed to courting. It is just barely a month after the secretive British artist saw that his famous 2006 work, Girl with Balloon, was put through a shredder just moments after it had been auctioned off for a record $1.4 million in London."

The Times reports on a sale of a group of Carleton Watkins photographs by the Hispanic Society in New York to an "unknown donor" who is giving them to the Met.

It's presented as a good news story -- and it is ("They stay in New York but also they go somewhere where they'll be cared for and appreciated") -- but, strangely, there's no mention of how the sales proceeds will be used. We do hear that "the sale garnered more than $1 million for the Hispanic Society, whose doors are now closed because the museum is in the midst of a two-year renovation expected to cost about $15 million" -- so perhaps the implication is that the money will go towards those costs. But we don't know for sure. Don't we need to know the answer to that question before we can decide whether this sale really is the good news it's being portrayed as or, alternatively, a repulsive, unethical, Stalinesque betrayal of the public trust? (I don't, but I would think the Deaccession Police do. Sanctions may be in order.)

Saturday, October 20, 2018

Because they are assuredly not held in the public trust, to be accessible to present and future generations, the three paintings, by Georgia O'Keeffe, are being sold by the Georgia O'Keeffe Museum, to buy … other works by Georgia O'Keeffe? Fortunately for the Museum, there's no such thing as the public trust or else some people might think this is problematic.

AP: "A fine art consultant in New York and an interior designer in Florida stole an elderly woman’s identity and used it to bid millions of dollars on famous paintings and defraud the renowned Sotheby’s auction house, federal prosecutors allege in court filings."

"Last year a US District Court judge rejected Prince’s motion to dismiss Graham’s case. ... This time around, in summary judgment motions filed on 5 and 9 October, Prince argues that he had to use as much of the photograph as appeared in the Instagram post to accomplish his purpose. In a 15-page statement calling his iPhone a paintbrush, Prince explains that he wanted 'to reimagine traditional portraiture and bring to a canvas and art gallery a physical representation of the virtual world of social media'. Had he altered the photographs, he says, that intent would go unseen."

Law360's Bill Donahue points to "this paragraph [from the motion papers] -- which makes tons of sense in the specific context of a fair use argument but is also, like, brutal shade":

"Not only does Prince’s work have a transformative message, meaning and purpose, but it also has in no way usurped Graham’s market – to the contrary, Graham sold his Photograph for the greatest amount after Prince’s use. This is not a case of forgery, piracy, counterfeit or plagiarism; nor is it copyright infringement. Indeed, the purchaser of the Prince painting knew the included image was not taken by Prince and has unequivocally stated that he would never have purchased the Photograph; rather, he wanted the content, context, commentary, and technique of the Prince work. Indeed, it would make no sense for someone to pay for a Richard Prince if they wanted the Graham Photograph, which they could easily purchase for a fraction of the price of a New Portrait."

Monday, October 01, 2018

The artist is Ana Mendieta; Suspiria is the new movie by Luca Guadagnino (who directed last year's Call Me By Your Name), a remake of a 1977 Dario Argento horror film. Variety story here, which includes the following:

"The suit alleges that the 'Suspiria' trailer, which was released in June, contained two images that were derived from Mendieta’s work. One image showed a woman’s hands bound with rope across a white table, which was alleged to be derived from 'Rape Scene.' The second showed a silhouette of a body on a sheet, which the estate claimed was based on 'Silueta Series.'

"The estate sent a cease and desist letter to Amazon in July. In late August, Amazon dropped a second trailer that did not contain the images. The studio screened the film for the estate’s agent in early September, after it premiered at the Venice Film Festival.

"According to the suit, the two images had been removed from the film, but the agent flagged eight others that also bore similarities to Mendieta’s work."

Brian Frye tweets: "The lawyers for the estate will be so sad when they learn that copyright doesn’t protect style or ideas. Will this even survive a motion to dismiss? I hope not."

But Lee Thomas-Mason posts some side-by-side comparisons and it's not at all obvious to me that these (especially the first two, which it seems have been removed from the film?) fall on the idea side of the idea-expression divide.

Story (and copy of the decision) here. As mentioned here, G.M. had argued that there couldn't be infringement because the graffiti was part of an "architectural work" (namely, the parking garage it was painted on). The court rejected that argument, if anything treating it as a closer call than it actually is. Eriq Gardner calls it a "big win for graffiti artists."

The American Royalties Too Act is being reintroduced. I'm not a fan of the Act (for reasons mentioned here), but there is a version of a resale royalty that makes sense to me (for reasons hinted at, but not adequately defended, in the same post).

"The artist had the additional difficulty that he signed a contact [which said] Trinity will have the right to complete, exhibit and sell the Sculpture if it so chooses [and that the artist] understands that Trinity has not promised the public exhibition of the Sculpture, and that Trinity may loan the Sculpture to third parties as Trinity deems appropriate."

The Second Circuit noticed that too:

"Here, Tobin argues that Trinity impermissibly modified his work, in violation of VARA, when it relocated the sculpture from Trinity Church in lower Manhattan to a seminary in Connecticut. He asserts that the sculpture is site specific, and was created for its original location at Trinity Church. Thus, he argues, by moving the sculpture, Trinity has violated the integrity of the piece, However, in a written agreement signed by the parties prior to the sculpture’s installation, Tobin affirmed that Trinity 'has not promised the public exhibition of the Sculpture, and that Trinity may loan the Sculpture to third parties as Trinity deems appropriate.' Because either of these actions would require Trinity to physically move the sculpture, we conclude that Tobin waived any right he may have held under VARA to maintain the piece specifically at Trinity churchyard. Tobin 'expressly agree[d]' to this 'use[] of [his] work,' in conformance with the waiver requirements of VARA. 17 U.S.C. § 106A(e)(1). Accordingly, dismissal of Tobin’s claims premised on the modification resulting from the relocation of the piece was appropriate."

"We collected data representing all sales at public auctions conducted by Sotheby’s and Christie’s during March and April 2018. We examined how resale royalties from those sales would have been distributed if the so-called ART Act, the last bill attempting to enact resale royalties on a national level, was in place. The results are telling.

"If the ART Act had been law, 683 transactions by Sotheby’s and Christie’s in those two months might have been subject to resale royalties payments. Those sales ... would have generated royalty payments totaling over $2.3 million. A nice sum, but for whom?

"For the rich, and, in particular, for the rich and dead. Most of the royalties (57%) would have been paid to the estates of deceased artists, typically very famous ones. That list is dominated by some of the most prominent artists of the 20th century: artists who, on top of being critical and popular favorites, were wealthy in their lifetimes and left fortunes to their heirs. ..."

"So it’s clear that top-tier artists and their heirs make out like bandits under a resale royalty scheme. It’s also clear who doesn’t: young artists. There is not a single living artist in his or her twenties in our data who receives a resale payout. Total royalties for living artists in their thirties is only $6,813, or 0.29% of all royalties. Even artists in their forties are largely shut out. The top earner under the age of 50, the 49-year-old Shahzia Sikander, would have made just $5,125. In fact, all artists under 50, together, would have made only $52,906 in those two months, which is just 2.28% of all royalties, and about one-sixth of what the Andy Warhol Foundation alone would have reaped."

It's a pretty convincing argument against the ART Act ... but I still think there's a version of a resale royalty scheme that may make sense (which one day I'll try to spell out in more detail).

Monday, August 06, 2018

"The headline and tone of the article suggest something nefarious is going on. But unless you think that future charitable spending is less admirable than current charitable spending, nothing of the sort is the case. ... [T]he donor of the funds cannot get the money back to finance his consumption or that of his heirs. The money has to eventually go to IRS-approved charities. Putting money into a DAF is essentially a commitment to give that part of your wealth, plus all future returns on it, to charity. As such, DAFs should be applauded."

Sunday, August 05, 2018

"In a detailed ruling, U.S. District Court Judge Steven McAuliffe dismissed the warranty claim Hall had brought, concluding that because the case was brought four years after the purchase of the art, that was too late. ... But McAuliffe declined the bid of the Gascards to dismiss the other three charges, fraud, conspiracy to defraud and unjust enrichment. ... 'Hall, on the other hand, has pointed to sufficient facts which, if credited as true, would permit a jury to conclude by clear and convincing evidence that the Gascards knew the paintings at issue were forgeries (or, at a minimum, that they were consciously indifferent to that fact),' McAuliffe wrote. The decision means those three remaining counts are on a path to go to trial later this year."

Museum consultant Bob Beatty has a piece up at Hyperallergic on "the deaccessioning debate in museums." As evidenced by his approving citation of the Ellis Rule, he seems to be in favor of a loosening of the "ethical" prohibitions on deaccessioning, but also seems keen to avoid the ire of the tomato throwers, so he's pretty subtle about it all.

Wednesday, July 18, 2018

"Mr. Falkner’s case is set to turn on another unsettled question of copyright law. Last month, lawyers for G.M. sought to end his lawsuit by claiming in court papers that the company was allowed to use his parking garage mural because of a provision in the law that says images of 'architectural works' do not have copyright protections. In their papers, the lawyers argued that the parking garage was itself an architectural work and that Mr. Falkner’s mural was not protected under the law because it was 'incorporated into a building.'"

And in response:

"Last week, Mr. Gluck [the artist's lawyer] filed his own court papers, suggesting that the architectural exemption was put in place to protect the public from being sued for taking and posting photos of significant structures like the Washington Monument or the Space Needle in Seattle. If a parking garage — even one covered in art — could be construed as a significant structure, Mr. Gluck maintained, it would have widespread implications. 'If GM’s view prevailed,' he wrote, 'all graffiti art that exists on a building — that is, most graffiti art — would suddenly be unprotected by copyright.'"

"Coblentz Patch Duffy & Bass partner Lawrence Siskind, who’s not involved in the case, said at first blush it sounds as if the foundation has a strong case. If the museum called itself 'The Museum of Surrealism' and exhibited Dali retrospectives, that probably wouldn’t break any laws. It could even create a website called DaliSucks.com and publish commentary and criticism about his artwork. But use of 'Dali' as part of the museum’s name might imply that Dali’s heirs or owners of the rights have authorized use the name, or endorsed the museum, Siskind said."

"UC Hastings School of Law civil litigation professor David Levine said Piterman 'may well have a problem' by using Dalí’s name and image to promote the museum. It’s one thing, Levine said, to display a Dalí painting on a museum wall. It’s another thing to use Dalí’s image to promote it. To be safe, Levine said, Piterman needs a different strategy. 'If he advertises it as "Dmitry’s Museum Featuring Works of Salvador Dalí" without using Dalí’s likeness, that’s probably OK,' Levine said."

Says Tom Danziger in this artnet piece on a recent Supreme Court decision involving the power of states to require out-of-state sellers to collect sales tax on objects shipped into the state -- say works of art, for example. Here's the New York Times story on the decision. More here generally, and more here as it relates specifically to the art market.

Here's an interesting one: the US Postal Service owes an artist $3.5 million for using what they thought was a photo of the Statue of Liberty on a stamp but which turned out to be a photo of a variation on the actual statue that lives outside a New York-themed hotel in Las Vegas. The decision is here.

Lots of coverage over the last week. Nicholas O'Donnell has a very good, comprehensive overview of the twists and turns the case has taken. His conclusion: "Barring unexpected developments (or Supreme Court intervention and reversal), this is probably the end of the line for droit de suite in America."

Brian Frye says the decision is "a big deal, but should not come as a surprise to anyone."

Jori Finkel's report in The Art Newspaper points out that "the ruling could also open the door for Christie’s and Sotheby’s to hold more contemporary auctions in Los Angeles, free of both the burden of paying the 5% royalty and the pressure of navigating and litigating this issue." And she includes a glass half-full take from ARS's Ted Feder: "On the bright side, the Ninth Circuit decision recognises this federal pre-emption, which in our view argues for adoption of a national right, covering all the States."

On the glass half-empty side, echoing O'Donnell's conclusion, Daniel Grant's Observer report declares that "artist resale royalties in the United States, like Old Marley in the Dickens story, are as dead as a door-nail." I think this take may overstate things. Yes, resale royalties are currently a little deader than they were before this case, in the sense that there used to be one state that had them and now there are (and can only be) none. But it's at least possible that, on the national level, there may be slightly more momentum for resale royalty legislation after this decision than there was before. It's still pretty unlikely, but I don't think we can rule it out completely. I still think there's a version of a resale royalty law that make sense.

Friday, July 06, 2018

BREAKING: Ninth Circuit rules that the California resale royalty law is preempted by the 1976 Copyright Act (so -- at most -- the plaintiffs can pursue claims from the period between the law's effective date of January 1, 1977 and the 1976 Act's effective date of January 1, 1978).

"This is so obviously fair use that it's not even worth going through the full four factor analysis. This is less than a second in a political video showing a public sculpture in a public location. It's not key to the video. It's used as part of commentary. The nature of Kapoor's lawsuit, however, is quite obviously to stifle free speech he disagrees with."

IP professor Christine Farley tweets: "The Bean appears for just 1 second, but it takes up almost the entire frame. De minimis?" (For a recent de minimis case, see here.)

And some interesting Twitter discussion among some law professors here (though I really don't get the doubts about copyrightability here). Brian Frye says "surely the use of public art as a backdrop is - or should be! - a fair use." Michael Risch wonders why we should think "people should be free to commercialize photos of sculptures when they can't commercialize a photo of a painting. Other than the fact that you have to pay to see one of them in a museum, it's unclear to me why these are different categories of art." Several people seem to think there should be a statutory exception allowing the use of public art.

In The Art Newspaper last week, Anny Shaw uses P. Diddy's recent purchase at auction of a Kerry James Marshall painting for $21 million -- "Marshall didn’t receive a cent from the sale" -- as an occasion to wonder about resale royalties for artists.

And that reminds me to thank everyone who came out to Pioneer Books Monday evening for a stimulating conversation on the subject of resale royalties (where among other things I described what I don't like about the most recent proposed legislation and defended my tentative, still-developing idea for an alternative version that would apply, without a cap, in cases where there has been a massive increase in value).

Wednesday, June 06, 2018

I've been meaning to link to the AAMD's statement regarding their imposition of sanctions on the Berkshire Museum and the La Salle University Art Museum.

It's a really good instance of the phenomenon Michael Rushton talked about here: it just states their policy as if it's self-evident; there's no real effort made to explain why the policy makes sense.
All the work is done (to the extent any work is done) in the second paragraph:
"AAMD has a long-standing policy that restricts the use of funds obtained through deaccessioning to the acquisition of works of art. Selling art to support any need other than to build a museum’s collection fundamentally undermines the critically important relationships between museums, donors and the public. When museums violate the trust of their donors and the public, they diminish the opportunity and responsibility to make great works of art available to the public. This hurts the individual institution and affects the museum field as a whole."
The first sentence just asserts the policy. The second sentence is the closest we get to an explanation or defense of the policy, so let's take a close look at it. The key move, the stolen base, the sleight of hand, is the sneaky introduction of the "other than": Selling art to support any need other than to build a museum's collection fundamentally undermines (not just undermines, fundamentally undermines). But where does that particular "other than" come from? Couldn't we just as easily slip anything we want in there? Selling art to support any need other than keeping the museum from going out of business. Selling art to support any need other than providing expanded access to the museum's collection. Selling art to support any need other than attracting the most talented curators. Selling art to support any need other than changing the museum's mission. Selling art to support any need other than paying legal fees. Why does "to build a museum's collection" get to be the only "other than"? How did that happen?

Again, it's just what Rushton calls attention to: what they're really saying here, in their big, public statement on this big, public matter, is: We have a policy. To violate that policy fundamentally undermines. It's just circular; it's no explanation at all. This was the best they could do?

Nor is there any explanation of how those "critically important relationships" are (fundamentally) undermined. It's just another empty assertion.

The third sentence pivots to talking about "violating the trust" of the donors and the public -- but where did that come from? What trust? How is it violated when a museum sells art for one purpose but not for the big "other than" purpose? And what if selling art in a particular case expands the opportunity to make great works of art available to the public -- again by, for example, subsidizing or eliminating admission fees, or keeping the museum open longer hours, or keeping a financially troubled museum from closing its doors for good?

Or, what about the Ellis Rule? What if a small museum in the Berkshires sells art to a museum in Los Angeles? Has that diminished the opportunity to make great works of art available to the public, or expanded it? Won't more people get to see it in Los Angeles?

Are they even trying any more?

The paragraph concludes with: "This" -- referring, I guess, to the diminishment of the opportunity and responsibility to make great works of art available to the public -- "hurts the individual institution and affects the museum field as a whole." Yes, we mustn't do anything that could "affect" the museum field as a whole. That's always unethical. You never want to affect the museum field as a whole.

Saturday, May 12, 2018

I've mentioned a coupletimes that, so far as I was aware, no member of the Deaccession Police had had anything negative to say about the Baltimore Museum deaccessioning (to the point that I had to post my own tongue-in-cheek version of a response).

"Tyler Green, the producer and host of the Modern Art Notes Podcast, tweeted his concern that the BMA was not following AAM guidelines regarding deaccessioning, writing: 'It’s by a man, so we’ll sell it even tho it’s a great artwork.' A subsequent tweet read: 'I’d like to know where in AAM’s guidelines it says that deaccessioning motivated by gender is a best or even sanctioned practice.'"

Monday, May 07, 2018

"To be perfectly honest, I’m not that worried about whether the richest sellers have to implement some annoying bureaucratic compliance measures. For one thing, they have the resources. ... More importantly, they’re also the sellers that could realistically be used in money laundering schemes. Neither of the above is true for most galleries and dealers. They are already stretched too thin from a staff and expenses standpoint .... Having to bolt on a heavy, federally approved monitoring arm could tip some of these struggling small businesses over into the abyss."

One count of wire fraud. "The prosecution and defense have agreed to ask the judge for a sentence of between four years and three months and five years and three months, which is what sentencing guidelines recommend."

The Art Market Monitor says the case "may continue to have consequences as the details and market histories of [the works involved] are better understood."

Monday, April 30, 2018

Artnet's Julia Halperin has more on the Baltimore Museum's decision to sell works by Warhol, Rauschenberg, "and other 20th-century titans" in order to "fund future acquisitions of cutting-edge contemporary art, specifically by women and artists of color."

I haven't seen any criticism of the move at all -- and indeed Halperin's piece fails to cite any actual opposition.

It's okay to deaccession when you have a good reason to do so.
In this case the good reason is to diversify the collection. But there can be other good reasons; buying more art is not the only conceivable good reason across all cases.

So can we please stop talking about an imaginary "public trust" that doesn't exist? Clearly the works Baltimore is selling are not now and never have been held in the public trust. They're just owned by the museum, and it's free to do with them whatever it thinks best.

And can we please stop pretending to (selectively) worry about hypothetical future donors who will be scared off from donating to museums if they understand their works can be sold?

All that matters is whether there is a good reason for the sale, whether, on balance, given all the relevant circumstances, the benefits outweigh the costs. No more "ethics" lessons, no more moral outrage from the Deaccession Police.

Thursday, April 26, 2018

One of my favorite bits of nonsense in the whole web of nonsense that makes up the discussion around "the public trust" is that when museums (which are, for the most part, private actors who happen to get some tax benefits) go to sell some work, we hear endlessly about how problematic that is because the work is (in some unspecified way) held in the public trust ... but when work is sold by, you know, the public, somehow the public trust doesn't enter into the discussion.

Latest case in point: the Illinois Metropolitan Pier and Exposition Authority is selling a Kerry James Marshall painting that it purchased for $25,000 in 1997, "with public money raised through project-expansion bonds," at Sotheby's next month for an estimated $8-12 million. And of course, not a peep from the Deaccession Police.

So to review: works held by an Illinois municipal authority, purchased with public money: not held in the public trust. Works held by, say, the Art Institute of Chicago, purchased with money they raised from donors, so extremely held in the public trust.

Now, if there were an Association of Metropolitan Pier and Exposition Authority Directors and they happened to have adopted a "Code of Ethics" on the subject, then we can be sure the Deaccession Police (aka Random Code of Ethics Enforcers) would be all over it. But without that Code of Ethics, this work, though held by the public, is obviously not held in the public trust.

Monday, April 23, 2018

"What were the terms of the contract you signed, you rich knucklehead? And: Is the complaint a work of art? And: Why can I never remember what an ouroboros is and have to look it up every damned time?"

Saturday, April 21, 2018

The Fearless Girl sculpture (background here) is moving, but there are conflicting reports about whether the Charging Bull is going with it. The New York Law Journal says "the Fearless Girl is getting out of the path of the Charging Bull, which may also allow the New York City government and the owner of the Fearless Girl to sidestep a lawsuit." But the New York Times says "if the city has its way, the bull will eventually go with her": "A spokesman for [Mayor] de Blasio said that it was important to the mayor ... to keep the two works together."

UPDATE: Sergio Muñoz Sarmiento: "NYC should move both the Fearless Girl and the Bull to Albany. After all, what better place for bull?"

The Boston Globe's Jeff Jacoby (seen earlier here) cheers the outcome of the Berkshire Museum dispute, saying "it looks as though the Berkshire will weather the storm and remain a lively presence in Pittsfield for years to come" and adding: "Yet the art snobs seem, if anything, even more outraged."

Deaccession Police Captain Christopher Knight (who had been singled out in Jacoby's earlier column on the subject) responds on Twitter: "Calling art lovers 'snobs' is a familiar redoubt for the ignorant."

To which Jacoby responds: "Your advice for the Berkshire Museum, Christopher Knight, was that it close down & be cannibalized by other museums. The pain that would cause Pittsfield you shrugged off: 'If its community cannot sustain the museum, not much can be done.' I'd say 'snobs' is putting it mildly."

Here's a link to the Knight column in question (which I discussed earlier here), which includes the following:

"Here's an idea: Don't sell the art. Do close the museum.

"Start behaving like the charitable institution you are supposed to be. Spend the next several years responsibly overseeing the dispersal of the collection.

"Donate the art to other museums that would benefit most from having it. ... Because the state gives the Berkshire Museum a subsidy through tax breaks, in addition to its federal one, Massachusetts has a priority stake; so its many other museums should get the first (but not the only) consideration for gifts.

"Shields [the museum's director] has said that, without the sale, the institution can't survive beyond the next eight years. That affords plenty of time to unwind the Berkshire Museum, an honorable task at least as hard as conceiving a last-ditch overhaul with no guarantee of success.

"Drastic, I know. And a sad loss for Pittsfield. It would be a psychic blow to a city that still struggles economically.

"But the hard truth is that if its community cannot sustain the museum, not much can be done."

A sale of seven works -- by Warhol, Rauschenberg, Kline, Noland, and Olitski -- to who knows where: totally fine, no big deal, just shut up.

A sale of one work by a museum in Pittsfield, Massachusetts to another museum in Los Angeles, California: a tragedy. Months and months of protests and non-stop press coverage and lawsuits and anguish and tears.

The Ninth Circuit plans to issue its ruling, despite the parties' settlement. Story here. Background here.

At PrawfsBlawg, Howard Wasserman says "now we will get to see if Naruto loses on the merits (as he should, because the scope of a statute is a merits issue) or on standing grounds (as the argument sounded the court was heading)."

Saturday, April 14, 2018

Those who are deeply, deeply concerned that works, once held in the public trust, remain held in the public trust must have been happy to have it confirmed this week that the Lucas Museum was the buyer of Rockwell's "Shuffleton's Barbershop" from the Berkshire Museum.

I kid, of course. They're not happy at all. But imagine this one sale was all the museum needed to solve its serious financial trouble. (Not too big a stretch, actually: the purchase price was not disclosed, but Sotheby's had previously estimated it at $20-30 million.) It's hard to see how anybody could object to that. The museum solves its problem, and the work stays in the public domain. Sure, maybe the people of the Berkshires "lose" one of "their" many Rockwells, but that's offset by the fact that the (many more) people of Los Angeles gain a Rockwell. It's a win-win, isn't it?

But you just know that, if that were the whole transaction, the Deaccession Police would be just as outraged as they always are. It would be unethical. It would be repulsive. It would be Stalinesque. The whole usual drill.

Their utter inability to distinguish between cases -- to see any relevant ethical difference between a sale by a struggling museum to another, better funded museum, on the one hand, and a sale by a flush museum to a private collector to raise funds for day-to-day operating expenses, for example -- suggests that there is something deeply wrong with their approach. But they're oblivious to it, or at least pretend to be.

Good piece (though a couple weeks old) from the Washington Post on the case I mentioned here, including this from NYU's Jeanne Fromer:

"There has been this shift in accepting street art as part of the artistic canon. … As street art has become more and more acceptable, a lot of people are inclined to look past the trespassing aspect in a way they might not have decades ago."

"For example, notice should be provided to the artist of the landlord’s intention to remove the art, ample time should be provided for its removal (no less than 90 days), and other accommodations should be made to facilitate the art’s preservation and removal. Though an action for injunction may still ensue if the work cannot be safely removed without destruction, the hope is that any damage award would, at the very least, be mitigated in light of the owner’s good faith efforts. In 5Pointz, maximum statutory damages were awarded because of the landlord’s aggressive actions, which were held to be an insult to the artists."

Julia Halperin has the story here. Background here. Apparently one issue in the case is whether the sculpture -- Log Cabin (1990) -- can be copyrighted at all: "The defendants say that the artistry of the work lies in the idea behind it, not the physical expression .... In fact, they contend, the actual construction of the work is so generic that Log Cabin is impossible to copyright."

Flavin Judd tweets: "Cady Noland is right, the art dealers are wrong. They are just arguing their 'philosophical' position for profit, not out of any kind of actual conviction."

Postmasters' Magda Sawon agrees: "This is a no brainer. Team Cady Noland."

UPDATE: Brian Frye "respectfully disagree[s] in part. The dealers may be 'wrong' in some 'ethical' sense, but their legal argument is pretty solid. The Copyright Office doesn't see any 'original' elements protectable by copyright & neither do I. No VARA rights without copyrightable subject matter."

Artnet's Eileen Kinsella says "that exhalation you just heard is the sound of art authentication boards and catalogue raisonné authors across the country breathing a sigh of relief." Yale's Will Goetzmann tweets: "Landmark decision granting art historians freedom of speech!!!!! Finally some rationality."

While it's certainly good news for artist foundations, keep in mind it's one decision by one lower court (which will probably be appealed). The best part of the decision for those folks is that the court enforced the legal fees provision in the plaintiff's agreement with the authentication committee: the next person contemplating bringing such a suit will have to think about not just the possibility of losing, but also of having to pay the foundation's legal fees if they do. (But given the existence of these clauses in the first place, that's probably something they should have been thinking about all along.)

Saturday, March 24, 2018

"I have no complaint with the marketplace, and in fact think it is an important part of the equation. I also do not doubt that a case remains for Berkshire to deaccession some works to salve their chronic deficits. I just think that the wholesale decimation of all of the highpoints in the collection is simply not justified on that premise alone, and that a) there is a more narrowly focused selection that can be justified on curatorial grounds, and b) there is no reason why these could not be offered to other museums first, if the sale is proven necessary by an independent financial review."

Wednesday, March 21, 2018

Asks Michael Rushton on Twitter, after succintly capturing the nature of most anti-deaccessioning arguments:

"These arguments seem to me to beg the question: if one assumes from the outset that deaccessioning is unethical and unprofessional, then of course it's all dire and urgent. But I've yet to see a coherent argument about *why* an institution selling some assets is unethical. It certainly might be the case that the sales of assets are a result of poor management and board oversight, but that's just bad management and oversight, and doesn't make every case of asset sales a moral failure."

I think that's exactly right: the Deaccession Police merely assume (why? because it violates the self-invented rules of a couple of museum guilds) that the practice is unethical, and all the hysteria simply follows from that assumption.

Rushton goes on to ask for "suggestions for an article that strongly presents a moral case against deaccessioning," and only Lee Rosenbaum (who so far as I can tell is the only member of the Deaccession Police at all willing to engage with critics) takes up the challenge, pointing him to her 2005 New York Times piece on the subject.

"Museums’ permanent collections belong to all of us. The public has, in most instances, paid for these works through the tax deductions given to private donors. And those donors bestow such works on the public expecting them to be valued for their aesthetic, not financial worth. If a museum doesn’t regard a particular gift as worthy of display or study, it shouldn’t accept the gift in the first place."

Rushton responds:

"There’s a lot in this paragraph; let’s break it down:

"'Museums’ permanent collections belong to all of us' is not true in any meaningful sense. Nonprofit museums are independent entities, and I have no claim on their works, any more than I have claims on the assets of any other organization. It is sentiment, but nothing more than that.

"That there were tax deductions to the donors does not change matters. All donations, cash or in kind, to registered nonprofits receive a tax deduction, but that doesn’t mean the organization surrenders the control of its assets to 'all of us.' The tax policy in place with respect to charitable donations is designed to encourage donations to charity, but does not imply any general public say in the management of assets.

"Do donors expect works to be valued for their aesthetic, not financial worth? Sometimes, maybe. A couple of years ago I was moving house, and ended up donating a couple of van-loads worth of books to my school library and local public library. They might put some on the shelf, and they might sell some where they think they could use the money to acquire books better suited to the library’s purpose. I don’t care – I just want to help out my library, and they can use my donation as it best benefits the library mission. I don’t see a moral difference between a gift of $500,000 cash to a museum and the gift of a work of art that doesn’t really fit its mission or collection but could yield $500,000 at sale that could be used on other purchases that would fit its mission. A donor could say 'I insist that you never sell this work, for any reason', I suppose. But I would want to ask that donor: Why?

"And as to the final point: my impression in most deaccessioning cases is not that a gift was accepted that the museum didn’t find worthy, but rather that it was once worthy but that circumstances have changed. Must any work accepted be held in perpetuity?

"And so in the end my ask for an article that gives a persuasive moral case that 'certain kinds of deaccessioning is unethical' has not been met. I don’t see it in the Berkshire case she is now covering."

I've made similar arguments in the past, including that Rosenbaum's argument can't possibly support opposition to sales between museums:

"Put aside the question whether this ownership principle applies to all non-profits, or just to museums (do 'we' own everything in every school and hospital and church and other non-profit by virtue of the tax deductions that help support them?), and go along with the assumption that everything every museum owns is 'our stuff.' Suppose Museum A has two paintings and has $100 in the bank (it's a very small museum). And suppose Museum B has one painting and $200 in the bank. So 'we,' 'the public,' 'Americans,' have three paintings (Museum A's two plus Museum B's one) and $300 ($100 from Museum A and $200 from Museum B). That's our stuff. Now Museum A sells one of its paintings to Museum B for $100. That leaves Museum A with one painting and now $200 in the bank, and Museum B now with two paintings but just $100 in the bank. What do 'we' have now? Three paintings and $300. Just as before. It's like moving money from one of my bank accounts (called, say, the 'National Academy Account') to another of my accounts (called, say, the 'Crystal Bridges Account'). I just don't see how 'Americans' are harmed when a work moves from one of their museums to another."

"It is sometimes suggested that this is a function of the favorable tax treatment museums receive: because museums are exempt from property and income taxes, and donors get tax deductions for contributing to them, the 'public' therefore is the true owner of the art. I've never really understood that argument. There are lots of other entities that get the same tax benefits -- churches. private schools and universities, hospitals, etc. Does the public own the MRI machines at the hospital? If a university decides to shut down the sociology department, should we step in and say, 'Hey, wait a minute. That department was held in trust for us. You can't just get rid of it like that'? Does every asset ostensibly held by every non-profit really belong to us? And if not, what makes art different? How does it come to be 'held in trust' when other, similarly-owned assets are not?"

"Note that this argument would apply not just to the art, but to all the other assets of the museum -- computers, chairs, and holiday decorations. More importantly, it's just not the case that being granted nonprofit status means you agree your 'assets are public.' Think of every church, hospital, private school, etc. Their assets do not 'belong' to the public."

"Not every work of art in a museum has been acquired in the same manner. Some, certainly, were donated to be cared for and (probably periodically) displayed. Those may or may not have been given with the legal caveat to be a permanent part of the collection; many aren’t. ... And some are purchased by museums. These purchases may increase in value, perhaps greatly. And in any other type of organization (profit or non-) making a smart purchase and then monetizing that asset when it accrues more value would be lauded."

Thursday, March 15, 2018

That's from this piece by Martin Gammon in The Art Newspaper, and I suspect it will quickly be adopted as a talking point by the Deaccession Police. Not only is deaccessioning repulsive and unethical and Stalin-esque, it also doesn't work!!

But is that really the right way to frame the issue? Isn't the real question whether this particular museum can liquidate (just liquidate, as opposed to "simply" liquidate) some portion of its collection (maybe it's the bottom 1%, maybe it's 22-24% from the bottom) for some funding (as opposed to a far more repulsive-sounding "cash windfall") that would help solve the particular challenge that this particular museum finds itself currently facing (as opposed to solving "most fiduciary challenges")?

According to The Fashion Law blog, a street artist complained to retailer H&M about their use of his work in an ad campaign ... H&M responded by filing a lawsuit seeking a declaration that unauthorized graffiti is not protected by copyright ... but then immediately realized they had made a big mistake and issued the following statement:

"H&M respects the creativity and uniqueness of artists, no matter the medium. We should have acted differently in our approach to this matter. It was never our intention to set a precedent concerning public art or to influence the debate on the legality of street art. As a result, we are withdrawing the complaint filed in court. We are currently reaching out directly to the artist in question to come up with a solution. We thank everyone for their comments and concerns, as always, all voices matter to us."

Wednesday, March 07, 2018

Mentioned earlier here. Georgina Adam and Anny Shaw have lots more detail in the Art Newspaper, including this from New York Judge Charles Ramos during a January court hearing:

"“I have never seen an industry more ripe with fraud and misconduct than the art business. To say there’s such a thing as artistic ethics is an oxymoron. Most of the cases I’ve had involving art dealers involve fraud outright. Just plain old fraud. This is not a nice business."

Monday, February 12, 2018

From the opinion (reproduced here): "If not for Wolkoff's insolence, these damages would not have been assessed. ... Given the degree of difficulty in proving actual damages, a modest amount of statutory damages would probably have been more in order."

UPDATE: Brian Frye: "Thankfully, this is why we have appellate courts. VARA is a stupid law, but not even VARA is this stupid."

Sergio Muñoz Sarmiento: "[I]t wouldn’t surprise me if this case grabs Congress’s or the Trump Administration’s attention. Otherwise, my bet is that this case is appealed."

Yeah, why not? Remember there are two ways to look at these situations. One is to weigh the actual costs and actual benefits and try to determine whether, on balance, all things considered, the sale is a good idea. The other is to take it as a given that the guidelines of certain professional organizations carry serious moral weight, such that their violation is an "ethical travesty." (And "pity" if you don't see it that way.)

Another example of the latter approach is San Francisco Chronicle art critic Charles Desmarais, who says the settlement "looks like complete capitulation to" the museum, and then adds: "I am sorry for your loss, Pittsfield." But why aren't we also happy for your gain, Bentonville, Arkansas, or Los Angeles, or wherever the Rockwell ends up? Why don't they cancel each other out? Why do only the losses count?